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CONTENTS vii
Case Hiibel v. Sixth Judicial Court of Nevada, Humboldt County et al. 134
Reasonable Suspicion to Back Up Stops 136
Case Navarette v. California 138
Case Illinois v. Wardlow 144

Frisks and the Fourth Amendment 157
The Criminal Procedure Balancing Ideal in Frisks 157
Reasonable Suspicion to Back Up Frisks 158
The Scope of Reasonable Frisks 159
Stops and Frisks at the Roadside 160
Ordering Occupants Out of Lawfully Stopped Vehicles 161
Case Maryland v. Wilson 161
Sorting Innocents, Evidence-Based Decision Making, and Officer Safety
During Stops 165
Frisking Occupants of Lawfully Stopped Vehicles 166
Case Arizona v. Johnson 166
Roadblocks and Checkpoints 168
Case Michigan v. Sitz 169
Case City of Indianapolis v. Edmond 173
Case Illinois v. Lidster 176

Detentions at International Borders 178
Case U.S. v. Montoya de Hernandez 179
5 Seizure of Persons: Arrest 184

Probable Cause to Arrest 188
Direct Information 189
Hearsay 189
Case Draper v. U.S. 190
The Arrest Warrant Requirement 193
A Neutral Magistrate 193
An Affidavit 194
The Name of the Person to Be Arrested 195
Arrests in Homes 195
Entering Homes to Arrest 195
Arrest by Force 197
Deadly Force 197
Case Tennessee v. Garner 197
Nondeadly Force 199
viii CONTENTS
Case Graham v. Connor 200
Case Kuha v. City of Minnetonka 204
Case Estate of Ronald Armstrong v. Village of Pinehurst 208

After Arrest 213
Case Atwater v. City of Lago Vista 213
6 Searches for Evidence 222

Search Warrants 225
Particularity 225
Probable Cause Affidavit 225
Search Warrants in the Digital Age 225
Case FBI—Six Search Warrants for Smart Devices 227
Knock-and-Announce Rule 231
Case Wilson v. Arkansas 231
Case Young v. City of Radcliff 237

Searches without Warrants 239
Searches Incident to Arrest 239
Case Chimel v. California 240
Case Arizona v. Gant 244
Case Knowles v. Iowa 249
Case Whren v. U.S. 251

Consent Searches 255
The Legal Test of Consent 256
Case Schneckloth v. Bustamonte 257
Empirical Research and Consent Searches 261
The Scope of Consent 262
Case U.S. v. Rodney 263
Withdrawing Consent 267
Third-Party Consent Searches 268
CONTENTS ix
Case Illinois v. Rodriguez 270

Vehicle Searches 274
Searches of Containers in Vehicles 276
Searches of Vehicle Passengers 276
Case Wyoming v. Houghton 276
Emergency Searches 279
Destruction of Evidence 279
Hot Pursuit 280
Danger to the Community 280
7 “Special Needs” Searches 282

Inventory Searches 285
Case South Dakota v. Opperman 286
International Border Searches 288
Airport Searches 289
Custody-Related Searches 290
Searches of Prisoners 290
Strip and Body Cavity Searches of Jail Inmates 291
Case Florence v. Board of Chosen Freeholders of the County of Burlington et al. 293
Testing and Storing Prisoners’ DNA 299
Searching Probationers and Parolees 300
Case Samson v. California 302
Searching People Not Charged with Any Crime 304
Case Norris v. Premier Integrity Solutions, Inc. 304
Searching College Students’ Dormitory Rooms 306
Case State v. Ellis 308
Drug Testing 310
Employee Drug Testing in the Workplace 310
Prenatal Drug Testing in Hospitals 311
Case Ferguson and Others v. City of Charleston and Others 312
Student Drug Testing in High Schools 316
8 Self-Incrimination 320
The Nature and Role of Confessions 322
The Self-Incrimination Setting 323
The Importance of Confessions and Interrogation 324
x CONTENTS
The Constitution and Self-Incrimination 325

The Due Process Approach 326
The Right-to-Counsel Approach 327
The Self-Incrimination Approach 328
Miranda v. Arizona 329
Case Miranda v. Arizona 330
The Miranda “Bright-Line” Rules 333
The Meaning of “Custody” 334
Case Berkemer, Sheriff of Franklin County v. McCarty 335
The Public Safety Exception 337
Case New York v. Quarles 337
The Meaning of “Interrogation” 345
The Waiver of the Right to Remain Silent 348
Case Berghuis v. Thompkins 349
Voluntary Self-Incrimination 352
Case Colorado v. Connelly 354
False Confessions: Popular Belief and Empirical Evidence 358
Why Do Innocent People Confess to Crimes? 359
The Impact of False Confessions 360
Reforms Aimed at Reducing the False Confession Problem 362
9 Identification Procedures 366

The Constitution and Identification Procedures 369
The Wade-Gilbert-Stovall Trio 369
“Reliability Is the Linchpin” 370
Case Manson v. Brathwaite 372
Case Perry v. New Hampshire 378
Social Science and Mistaken Eyewitness Identification 381

Memory and the Identification of Strangers 382
The Power of Suggestion 384
Psychological Research and Eyewitness Identification 385
Identification Research Methods 386
Eyewitness Retrospective Self-Reports 387
Empirical Assessments of Lineups 387
Show-Ups 389
Psychological Research and the Manson Reliability Variables 389
Recommendations for Reforming Identification Procedures 391
State Court Opinions 393
CONTENTS xi
Case State v. Clopten 393
Forensic Science and Identification Evidence 396

DNA Profile Identification 397
Case District Attorney’s Office v. Osborne 398
Flawed Forensic Evidence 402
Melendez-Diaz v. Massachusetts (2009) 404
Case Melendez-Diaz v. Massachusetts 406
10 Remedies for Constitutional Violations I: The Exclusionary Rule 412

History of the Exclusionary Rule 414
From Weeks v. U.S. (1914) to Mapp v. Ohio (1961) 415
United States v. Leon (1984) 417
Justifications for the Exclusionary Rule 418
The Exceptions to the Exclusionary Rule 420
Exceptions to the “Fruit of the Poisonous Tree” Doctrine 421
Nontrial Proceedings (Collateral Use) Exception 423
Trial Proceedings—Cross-Examination 423
The “Knock-and-Announce” Exception 423
Case Hudson v. Michigan 424
The Good-Faith Exception 428
Case Herring v. U.S. 429
The Exclusionary Rule after Herring v. U.S. (2009) 432

Social Costs and Deterrence: Empirical Findings 436
11 Constitutional Violations II: Other Remedies Against Offcial

Misconduct 440
Criminal Actions 442
Civil Actions 443
Lawsuits Against U.S. Officers and the U.S. Government 443
Case Anderson v. Creighton 444
Suing State Officers 447
Suing Local Governments 449
Law Enforcement Duty to Protect 450
The “Special-Relationship” Exception to the “No-Duty-to-Protect” Rule 452
The “State-Created-Danger” Exception to the “No-Duty-to-Protect” Rule 452
xii CONTENTS
“State-Created Danger” after DeShaney (1989) 454

Case Dwares v. City of New York 455
“State-Created Danger” and Domestic Violence 456
Case Town of Castle Rock v. Gonzalez 457
Case Pinder v. Johnson 461
Suing Judges and Prosecutors 465

Administrative Remedies 469
Internal Review 469
External Review 471
12 Court Proceedings I: Before Trial 474

The Decision to Charge 476
Probable Cause to Detain Suspects 478
Case County of Riverside v. McLaughlin 479
The First Appearance 482

Bail and Pretrial Detention 483
Bail and the Constitution 484
Preventive Detention 485
Case U.S. v. Salerno 486
Conditions of Pretrial Confinement 488
Case Bell v. Wolfish 489
The Right to Counsel 492

When the Right to Counsel Attaches 494
The Meaning of “All Criminal Prosecutions” 494
The Standard of Indigence 496
The Right to the Counsel of Your Choice 497
The Right to “Effective” Counsel 497
Case Rompilla v. Beard 499
Testing the Government’s Case 504

The Preliminary Hearing 505
Grand Jury Review 506
Arraignment 509
Pretrial Motions 509
Double Jeopardy 510
CONTENTS xiii
Case Renico v. Lett 511

A Speedy Trial 515
A Change of Venue 517
The Suppression of Evidence 519
13 Court Proceedings II: Trial and Conviction 522

Trial by Jury 525
The Moral Seriousness Standard 526
The 12-Member Jury Requirement 526
Jury Selection 527
Case Snyder v. Louisiana 530
The Right to a Public Trial 536
The Stages and Rules of Jury Trials 538
Conviction by Guilty Plea 545
The Constitution and Guilty Pleas 546
Case North Carolina v. Alford 547
The Plea-Bargaining Debate 551
14 After Conviction: Sentencing, Appeals, and Habeas Corpus 556

Sentencing 558
The History of Sentencing 559
The Division of Sentencing Authority 560
Sentencing Guidelines and Mandatory Minimum Sentences 561
The Constitution and Proportionality in Sentencing 568
Case Lockyer, Attorney General of California v. Andrade 570
Trial Rights at Sentencing 577
Case Gall v. U.S. 580
Death Sentence Procedure Rights 585
Appeals and Habeas Corpus 585
Appeals 586
Habeas Corpus 588
Case McQuiggin v. Perkins 592
xiv CONTENTS
15 Criminal Procedure in Times of Crisis 598

Illegal Immigrants and the Constitution 600
The Fourth Amendment and “Deportable Aliens” 601
Case U.S. v. Martinez-Fuerte 601
Detention During Deportation Hearings 606
Case Demore v. Kim 610
Counterterrorism and the War Powers 614
The Courts and the War Powers 616
Counterterrorism, Counterintelligence, and the FBI 620
Foreign Intelligence Surveillance Act (FISA) 621
FISA Court (FISC) 622
USA Patriot Act 624
National Security Letters (NSLs) 630
NSLs in Court 635
Case John Doe, Inc. v. Mukasey 635
FBI Proactive Intelligence-Gathering 643
Miranda v. Arizona and Terrorism Suspects 645
National Security Agency (NSA) Surveillance 649
Trying Terrorism Defendants 652
Trials in U.S. Federal Courts 654
Trials by Military Commissions 654
Debate: Military Commissions versus Trials in U.S. Federal Courts 656
Criminal Procedure in the Digital Age: Homegrown
Terrorist Suspects and ISIS 659
Case U.S. v. M. Farah and Others 660
APPENDIX Selected Amendments of the Constitution of the United States 669

Glossary 671
Bibliography 681
Case Index 693
Index 699
PREFACE
C
riminal Procedure 10 is about the central promise of U.S. criminal justice: to
balance the power of government to protect the safety and security of all persons
against those who want to do them harm, while at the same time protecting their
right to come and go as they please without government interference, and guaranteeing to
all persons that the government will enforce the law equally: on the street, at the police
station, in the courts, and in punishing wrongdoers. This promise is also its central prob-
lem—how close to social reality is the promise of equal rights and justice. This promise and
this problem have fascinated my students for close to a half century. It stimulates them to
think, and to discuss the issue in class and with their friends and family outside of class.
I’m not surprised. The balance between government power and individual rights and
equal justice has fascinated me since I had the great good fortune to study criminal pro-
cedure at Northwestern University Law School decades ago under the sparkling Claude
R. Sowle and the legendary Fred E. Inbau. Professor Sowle, a brilliant advocate and a dis-
tinguished teacher, emphasized the philosophical underpinnings of the law of criminal
procedure. Professor Inbau, a famous interrogator and a highly respected student of the
law of interrogation, spoke from the 1930s right up to his death in the late 1990s with the
authority of one who has actually applied abstract principles to everyday police practices.
In 1971, I taught criminal procedure for the first time. I’ve done so ever since. My
current students are a richly varied group of people: liberal arts students right out of high
school; police officers and veterans; city dwellers from the Twin Cities (Minneapolis/
St. Paul); students from small towns and farms; immigrants and U.S. citizens; Blacks,
Whites, Hispanics, Asians, Africans and Native Americans; “straight” and LGBTQ
students. That many of these students are now police officers and administrators;
corrections officers and administrators; criminal defense attorneys, prosecutors, and
judges; legislators; and criminal justice scholars testifies to their enduring interest in
the law and social reality of criminal procedure and to their commitment to the appli-
cation of formal law to informal real-life decision making.
Criminal Procedure 10, like its predecessors, reflects my conviction that the best way
to learn the law of criminal procedure is both to understand general principles and to
critically examine the application of these principles to real problems. By “critically,”
I don’t mean “negatively”; Criminal Procedure doesn’t trash the system. Rather, it interro-
gates the principles that govern the balance between government power and individual
life, liberty, privacy, and property. It tests the weight of strong, honest feelings about this
balance in the bright light of reason, logic, and facts. Criminal Procedure proceeds on
the assumptions that the general principles governing the balance between government
power and individual rights have real meaning only in the context of a specific reality,
and that reality makes sense only when seen in the light of general principles fitted to
specific facts in particular circumstances.
Text and Cases

Criminal Procedure 10 is a text-case book, meaning that it contains both text and
excerpts of actual court opinions that apply the general principles discussed in the
text to concrete cases. The text and case excerpts complement each other. The text
enriches the understanding of the cases, while the cases enhance the understanding of
xv
xvi PREFACE
the constitutional principles in the text. The cases aren’t just examples, illustrations, or
attention grabbers; they explain, clarify, elaborate, and apply the general principles and
constitutional provisions to real-life situations. Moreover, the cases are excellent tools
for developing students’ critical thinking skills and applying them to everyday life.
The cases and the text are independent enough of each other that they can each
stand alone. (Design differences clearly mark one from the other.) This separation of
text from cases allows instructors who favor the case analysis approach to emphasize
cases over text, leaving the text for students to read if they need to in order to under-
stand the cases. Instructors who favor the text approach can focus on the text, allowing
students to read the cases as enrichment or as examples of the principles, constitutional
provisions, and rules discussed in the text.
The case excerpts are edited for nonlawyers. They supply students with a full state-
ment of the facts of the case, key portions of the reasoning of the court, and the court’s
decision. Excerpts also contain portions of the dissenting opinions and, when appro-
priate, parts of the concurring opinions.
The question that opens each case focuses students on the main principle of the case.
The case history gives a brief procedural history of the case. And the questions at the end
of the case excerpts test whether students know the facts of the case, understand the law of
the case, and comprehend the application of the law to the facts of the case. The questions
also supply the basis for developing critical thinking skills, not to mention provoking
class discussions on the legal, ethical, and policy issues raised by the case.
Key Changes to the Tenth Edition

New cases and many re-edited existing cases appear in Criminal Procedure 10. I added,
replaced, and re-edited cases for three reasons. First, I wanted to reflect new develop-
ments in the law since the last edition. Second, I included cases I’ve found since the last
edition that explain the law better and apply the law to the facts in clearer and more
interesting ways for students. Third, experiences through actual use in the classroom led
me to re-edit some cases and sometimes cut excerpts from previous editions.
Empirical Research
Criminal Procedure 10 continues the practice of recent editions to include more of the
growing, rich social science research that explains and evaluates criminal procedures.
Criminal Procedure in Times Of Crisis

Chapter 15 reflects a major shift. In the immediate aftermath of the 9/11 attacks, the
terrorism story primarily revolved around the issue of what to do with enemy combat-
ants drawn from the ranks of Al-Qaeda who fought in Afghanistan and Iraq and were
being detained at Guantanamo prison. That story has not ended. But increasingly, the
story now is how to prevent another attack—namely counterterrorism and counterin-
telligence. That’s a big and complicated story and it represents a crucial expansion of
Criminal Procedure 9’s Chapter 15. In the new chapter, we focus on recalibrating the
balance between the critical need for information to conduct counterterrorism and
counterintelligence, and the First, Fourth, and Fifth Amendment rights you learn about
in Chapters 2 through 7 (searches and seizures). And, of course, we’ll update the immi-
gration sections to reflect the U.S. Supreme Court’s opinion in Arizona v. U.S. (2012),
upholding key sections of the Arizona immigration law, a law emulated by a growing
number of other states.
PREFACE xvii
New Real-World Emphasis

There are two new boxes incorporated into this new edition. First, at least one CRIM-
INAL PROCEDURE IN ACTION in each chapter adds a practical application of the law.
A point of law introduces the box, such as “Fifteen minutes is not ‘too long’ to detain a
stopped person.” Second, each chapter also includes at least one YOU DECIDE feature
that begins with a question to develop your critical thinking skills, such as “Are domes-
tic drones Fourth Amendment searches?”
Chapter-by-Chapter Revisions
Chapter 1
New
• Chapter title
• Opener
• Section, “Welcome to Criminal Procedure 10!”
• Section, “U.S. v. Apple”
• Table, “InternetLiveStats.com, Midnight to 9 am, March 16, 2016”
• Exhibits
• Cook’s Letter to Apple Customers
• Federal Court System
• Case, U.S. v. Apple (2016)
Revised
• Sections “The Text-Case Method” and “Empirical Evidence” moved to Chapter 2
Chapter 2
New
• Case, U.S. v. Armstrong (1996)
• You Decide (YD), “U.S. v. Thorpe (2006)”
• Criminal Procedure in Action (CPIA), “The right to observe and record police
performing their public duties”
Chapter 3
New
• Opener
• Sections
• The “Private Search Doctrine”
• Searches in the Digital Age
• Cases
• U.S. v. Lichtenberger (2015)
• U.S. v. Ganias (2014)
xviii PREFACE
• Exhibits
• Private Search
• Courts Recognize Computer Hard Drive Part of Daily Digital Life
Revised
• Section, “The Reasonable Expectation of Privacy Doctrine”
Chapter 4
New
• Opener, Navarette v. California (2014)
• Case, Navarette v. California (2014)
• Exhibits
• Stop to Seizure (NYPD, 2004–2012)
• Guidance for Federal Law Enforcement Agencies Regarding the Use of Race, Ethnic-
ity, Gender, National Origin, Religion, Sexual Orientation, or Gender Identity
• YD, “Should the ‘End Racial Profiling Act of 2011’ become the law?”
Expanded/Rewritten Sections
• Stop-and-Frisk Law after Terry v. Ohio
• Frisks and the Fourth Amendment
Chapter 5
New
• Opener, Estate of Ronald Armstrong v. Village of Pinehurst (2016)
• Cases
• Draper v. U.S. (1959)
• Estate of Ronald Armstrong v. Village of Pinehurst (2016)
• Section, “Tasers”
• YD, “Was the Custodial Arrest Reasonable?”
Revised
• Section, “Hearsay”
Chapter 6
New
• Opener, U.S. v. Rodney (1992)
• Cases
• FBI—Six Search Warrants for Smart Devices
• Wilson v. Arkansas (1995)
• Young v. City of Radcliff (2008)
• Knowles v. Iowa (1998)
• Sections
• Search Warrants in the Digital Age
PREFACE xix
• Consent Searches
• Empirical Research and Consent Searches
• The Scope of Consent
• Third-Party Consent Searches
• Exhibits
• Reflections on Law and Technology
• Circumstances That May Form Part of Voluntary Consent
• “Unequivocal” Withdrawal of Consent
• CPIA
• Knock and Talk Violates Fourth Amendment Warrant Requirement
• Consent Given While Handcuffed, After Promises and Threats, Was Voluntary?
• YD, “Should Searches Incident to Pretext Arrests Be Banned?”
Revised
• Sections
• Wilson Exceptions to the Knock-and-Announce Rule
• Occupants’ Failure to Respond to Officers’ Announcement
• “Knock and Talk”
• Searches Incident to Misdemeanor Offenses
• Searches Incident to Pretext Arrests
• Vehicle Searches
Chapter 7
New
• Opener, Norris v. Premier Integrity Solutions, Inc. (2011)
• Section, “Searching People Not Charged with Any Crime”
• Case, Norris v. Premier Integrity Solutions, Inc. (2011)
Revised
• Section, “Custody-Related Searches”
Chapter 8
New
• Opener
• Exhibit, “Cases in Which Courts Found a Knowing Waiver”
Chapter 9
New
• Exhibit, “Ipse dixit statute forensic proof process”
Revised
• Sections
• Social Science and Mistaken Eyewitness Identification
• Empirical Assessments of Lineups
xx PREFACE
Chapter 10
New
• Opener
• Exhibit, “SCOTUS Opinions Expanding Good-Faith Exception”
Chapter 11
Revised
• Sections
• Civil Actions
• Lawsuits Against the U.S. Government
• The “Special-Relationship” Exception to the “No-Duty-to-Protect” Rule
• The “State-Created-Danger” Exception to the “No-Duty-to-Protect” Rule
Chapter 12
Revised
• Sections
• Bail and Pretrial Detention
• The Right to Counsel
Chapter 13
Revised
• Sections
• The 12-Member Jury Requirement
• The “Unanimous Verdict” Requirement
• Conviction by Guilty Plea
Chapter 14
New
• Exhibits
• Odds of Receiving Departures by Race, Ethnicity, Sex, and Age
• U.S. Sentencing Guidelines, 18 U.S.C. § 3553
Revised
• Section, “Trial Rights at Sentencing”
Chapter 15
New
• Introduction
• Case, U.S. v. M. Farah and Others (2016)
PREFACE xxi
• Sections
• Criminal Procedure in the Digital Age
• Homegrown Terrorist Suspects and ISIS
Revised
• Sections
• Illegal Immigrants and the Constitution
• Detention During Deportation Hearings
• Counterterrorism, Counterintelligence, and the FBI
• Table, “Sneak-and-Peek Search Warrants and Extensions (2014)”
Supplements
Resources for Instructors
MindTap Criminal Justice
MindTap from Cengage Learning represents a new approach to a highly personalized,
online learning platform. A fully online learning solution, MindTap combines all of a stu-
dent’s learning tools—readings, multimedia, activities, and assessments—into a singular
Learning Path that guides the student through the curriculum. Instructors personalize
the experience by customizing the presentation of these learning tools for their students,
allowing instructors to seamlessly introduce their own content into the Learning Path
via “apps” that integrate into the MindTap platform. Additionally, MindTap provides
interoperability with major Learning Management Systems (LMS) via support for open
industry standards and fosters partnerships with third-party educational application pro-
viders to provide a highly collaborative, engaging, and personalized learning experience.
Online Instructor’s Resource Manual

The instructor’s manual includes learning objectives, key terms, a detailed chapter outline,
a chapter summary, discussion topics, student activities, and media tools. The learning
objectives are correlated with the discussion topics, student activities, and media tools.
Online Test Bank

Each chapter’s test bank contains questions in multiple-choice, true/false, completion, and
essay formats, with a full answer key. The test bank is coded to the learning objectives that
appear in the main text and includes the page numbers in the main text where the answers
can be found. Finally, each question in the test bank has been carefully reviewed by experi-
enced criminal justice instructors for quality, accuracy, and content coverage so instructors
can be sure they are working with an assessment and grading resource of the highest caliber.
Cengage Learning Testing Powered by Cognero

This assessment software is a flexible, online system that allows you to import, edit,
and manipulate test bank content from the Criminal Procedure test bank or elsewhere,
including your own favorite test questions; create multiple test versions in an instant;
and deliver tests from your LMS, your classroom, or wherever you want.
xxii PREFACE
PowerPoint® Lectures
Helping you make your lectures more engaging while effectively reaching your visually
oriented students, these handy Microsoft PowerPoint® slides outline the chapters of
the main text in a classroom-ready presentation. The PowerPoint® slides are updated
to reflect the content and organization of the new edition of the text and feature some
additional examples and real-world cases for application and discussion.
Acknowledgments
Criminal Procedure 10 didn’t get here by my efforts alone; I had a lot of help. I’m grateful
for all those who have provided feedback over the years.
Thanks to the people at Cengage. One more time, my editor, Carolyn Henderson
Meier, supported what I wanted to change in this edition and cajoled me to make
changes I didn’t want to make, while through it all putting up with my exasperating
“mercurial temperament.” Criminal Procedure 10 is so much better because of her.
Thanks also to Julia White, content developer; Christy Frame, senior content project
manager; and Helen Bruno, senior designer.
Then there’s Derek Volk, who has thrice blessed me. First, he was my student in all three
courses I teach at the University of Minnesota—Introduction to Criminal Justice, Criminal
Law, and Criminal Procedure. Second, he was my TA in Criminal Procedure and in Intro
to CJ once. (Students respected and loved him in both courses.) Third, he was my indis-
pensable assistant in preparing Criminal Procedure 9 and 10 for publication. The revised
Learning Objectives and Chapter Summaries are utterly and invaluably his. His strong
performance as a student (he was near the top of the class in Criminal Procedure) and twice
as a TA Criminal Procedure uniquely qualified him to assist me. Countless times through-
out the manuscript, I encountered comments such as “I think students might understand
this better if you worded it this way” or “I think this should be a key term; otherwise stu-
dents might miss its significance” or “I’m glad you changed this; I think it’ll be easier for
students to understand now.” I accepted all of Derek’s suggestions. The result: For the first
time, a student who used the book and dealt with students’ problems when he was a TA
actively participated in preparing an edition of Criminal Procedure. Don’t take this to mean
we “dumbed it down” and “spoon-fed” students. We just made a serious effort to write
difficult matter in clear, straightforward prose.
Thanks to my son Luke, Meadowbrook Software, LLC, who designed the
“Police-Citizen Contacts” graphic in Chapter 4. My own efforts to depict the concept
that greater police intrusions and deprivations in their street encounters require greater
objective basis to back them up were feeble. We struggled and argued over the details.
(Pitting my mercurial temperament against his stubbornness wasn’t always a pretty
picture. We even tested our efforts on our friends, with his backing him up and mine
backing me.) In the end, the adversarial process produced a result that is both a pretty
and effective tool to portray the concept we were trying to depict.
What would I do without Steve and Doug? Doug takes me there and gets me here
and everywhere, day in and day out, days that now have stretched into decades. And
my dear friend Steve, whom I’ve known from the days when he watched over my kids;
over the decades when he kept the Irish Wolfhounds; to now, when he manages to keep
our OSH cat, the very Senior Poodle, me, and a lot more around here in order. And
PREFACE xxiii
they do it all while putting up with what my adored mentor at Cambridge, the late Sir
Geoffrey Elton, called “Joel’s mercurial temperament.” Only those who really know me
can understand how I can try the patience of Job!
I dedicate the book to my students, who say that I’ve challenged them, but who for
50 years have challenged me to explain and defend what I say and what I write. They,
more than anyone or anything else, have made me a better teacher and continue to
inspire me to be the best teacher and write the best book I can. But, should I ever think
I’ve done well enough, I’ve got what my long-departed German mother said when I
brought my report card home with grades of 100 in all but one of my subjects. It was a 99.
She asked, “What’s this 99?” I asked, “What about the 100s?” Her answer lives with me
still: “The 100s will take care of themselves. Get to work on that 99!”
Students, friends, families, and associates like these are behind whatever success
Criminal Procedure 10 enjoys. As for its faults, I own them all. Are you listening, Mom?
Joel Samaha
Minneapolis
September 1, 2016
About the Professor Joel Samaha teaches Criminal Law, Criminal Procedure, and
Introduction to Criminal Justice at the University of Minnesota. He is both
a lawyer and a historian whose primary interest is crime control in a con-
Author stitutional democracy. He received his BA, JD, and PhD from Northwestern
University. Professor Samaha also studied under the late Sir Geoffrey Elton
at Clare Cambridge University, England. He was named the College of Lib-
eral Arts Distinguished Teacher in 1974. In 2007 he was awarded the title
of University of Minnesota Morse Alumni Distinguished Teaching Professor
and inducted into the Academy of Distinguished Teachers.
Professor Samaha was admitted to the Illinois State Bar Association in
1962 and practiced law briefly in Chicago. He taught at UCLA before going
to the University of Minnesota in 1971. At the University of Minnesota, he
served as Chair of the Department of Criminal Justice Studies from 1974 to
1978. He now teaches and writes full time. He has taught both television
and radio courses in criminal justice and has co-taught a National Endow-
ment for the Humanities seminar in legal and constitutional history.
In addition to Law and Order in Historical Perspective (1974), an analy-
sis of law enforcement in pre-industrial Essex County, England, Professor
Samaha has transcribed and written a scholarly introduction to a set of local
criminal justice records from the borough of Colchester during the reign of
Elizabeth I. He has also written several articles on the history of criminal
justice, published in the Historical Journal, The American Journal of Legal His-
tory, Minnesota Law Review, William Mitchell Law Review, and Journal of Social
History. He has also written two other textbooks, Criminal Law, now in its
twelfth edition, and Criminal Justice, now in its seventh edition.
xxiv
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See also Chassidim.
Pius IX., 310.
Plato, Dialogues, 9;
idea of usury, 106, 290.
Plehve, M. de, 356, 358–9, 367, 368–70.
Pobiedonostseff, M., 335, 368.
Pogrom, 366.
Poland, Jews in, 101, 103–4, 236–7, 240–2, 243, 308, 338, 353–4,
366–7;
spread of the Bund to, 376, 377;
Rabbis of, 380;
emigration of Jews from, 450;
partition of, 331;
assimilation experiment, 370.
Poles, condition of, under Nicholas I., 332;
hatred of Jews, 353.
Polish rebellions, 333, 334;
Uniates, 337;
culture, 355;
Jews, 382, 475, 498.
Pompey, 18, 19–20.
Popes, advance of authority of, 83–4, 178–9, 192–5, 408;
radical change of attitude towards Jews, 202–3.
Portugal, massacre of Jewish converts, 169, 172;
Inquisition erected in, 171, 311.
Prague, expulsion of Jews from, 235.
Praise of Folly (Erasmus), 215.
Prioresses Tale, The (Chaucer), 255–8.
Proseucha, 34.
Protection, demand for, 459–60.
Protestantism, opposed to Catholicism, 6–7, 233–4;
hostile to Jews, 218, 232;
in England, 274, 282.
Prussia, question of emancipation of Jews introduced, 307;
war against Austria, 334.
Prussian Constitution, 308;
Diet, 423.
Ptolemies, The, 1;
prosperity of Jews under rule of, 2.
Puckler, Count, anti-Semitic speeches by, 425.
Purim, Feast of, 47, 147.
Puritans, 275;
resemblance to Jews, 276;
English, 278.
Quemadero, The, 160, 247.
Raaben, General von, 358.

Rabbis, schools established for, 304.
Rationalism, 481.
Raymund VI., Count of Toulouse, 91–3, 94, 95.
Raymund, Viscount of Beziers, assassination of, 92–3.
Reccared, King, 57–8.
Reclus, the brothers, 463.
Redemptorist monks, fanaticism of, 472.
Reformation, object of, 214, 246.
Reichstag, anti-Semitic feeling in, 425.
Religious Code (Maimonides), 75–6.
Reliques of Ancient Poetry (Bishop Percy), 258, 268.
Renaissance, object of, 214, 286.
Renan, Ernest, 430–31, 432.
Rennes, 434, 435.
Resettlement in England, 275–85.
Resurrection, Church of, 41.
Retour Le, de Jérusalem, 435.
Reubeni, David, 169–71.
Reuchlin, John, 225, 232.
Rhine, Jews of, 404.
Rhode, Island of, 277.
Richard Coeur de Lion, 220;
anti-Jewish demonstrations in reign of, 120–1;
confers privileges on Jews, 122.
Ripon, Marquess of, 399.
Rishon le Sion, wine-growing at, 509.
Roberts, Lord, 447.
Roman writers, unanimous condemnation of Jews, 31.
Roman Catholic reaction against the Reformation, 202;
Catholic apologists, 282;
Catholic clerics, 422;
Church, 408;
anti-Semitism fostered by, 427.
Roman rule, Jews under, 18–27, 40;
driven from Rome, 34;
evidence not accepted against Christians, 49;
as traders in Rome, 52, 54, 182, 185–6, 190–1;
edict of prohibitions, 208, 310, 311.
Romans, massacre of, by Jews, 35–6.
Romanticism, relation of, to Romanism, 480.
Roosevelt, President, 400.
Rothschild, Baron Lionel de, 321, 322, 323–4;
Edmund de, 509;
Lord, 466.
Rothschild Bank (Paris), 433.
Roumania, Jews in, 379–403;
oppression of, 482;
prejudice against Hebrew race in, 379, 429, 436;
persecution of, 393–6, 443;
cause of oppression, 395;
emigration from, 397, 398;
England’s attitude towards, 398–9;
political condition of Jews in, 392;
their cause advocated, 483;
Jewish disabilities question in, 391;
Roman colonists in, 386;
as a highway, 388;
Queen of, 393, 402–3;
economic misery of, 402.
Roumanian independence, recognition of, 385;
citizenship, 385–6;
language, 389;
legislation, object of, 393, 474;
Labour Law, 398;
Constitution, revision of, 400;
Jews efficient farmers, 510.
Roumanians, origin of, 386, 388.
Rousseau, Jean Jacques, 286.
Rubenstein, 327, 328.
Russell, Lord John, 321.
Russia, Jews in, 329–78;
subjected to conscription, 332;
emancipation of serfs, 333;
Ukase (1804) relieves oppression, 331 (1864), 344;
outbreaks against, 338, 348;
expulsion from, 350;
persecution of, 362, 443, 482, 489;
sign petition to Ministers, 351;
as recruits, 352, 376.
Russia, opposition of, to Occidental reform, 330;
conflict with Turkey, 335;
Jewish question in, 349–50;
Batoum fortified by, 402.
Russian Empire, history of, 331;
emancipation of serfs, 333;
religious fanaticism rare, 339;
tyranny, 336–7;
peasant, 340–1, 344–5, 364;
causes of ill-feeling towards Jews, 338–9;
administrative policy, 346–7, 362, 366, 377;
Christians, ignorance of, 347;
Jews, gifted writers, 355.
Russo-Jewish Committee, 443.
Sadducees, 6;
religious tenets, 7, 8, 495, 508.
Salerno, School of, 69.
Salimbene, 178.
Salisbury, Lord, 488.
Salomons, Alderman, 324.
Samaritans, 37, 49.
Sanhedrin, The, institution of, 4;
convoked, 302, 303.
Sappho, 3.
Sazonoff, 370.
Schiller, 291.
Schneider, Herr, 429.
Scott, Sir Walter, 313, 314, 315.
Seleucids, Graeco-Syrian, policy of, 3, 5, 6, 22.
Semites, hatred of Spaniards for, 405.
Serene, 60–1.
Servia, condition of Jews in, 383, 384, 483.
Servian Law, rights of Jews under, 384.
Severus, Bishops of Magona, 57.
Shakespeare, 273, 300.
Shekel Account, the, 506.
Shulchan Aruch (Joseph Caro), 211.
Shylock, 274, 313, 314, 315.
Siberia, 463.
Sigismund Augustus, King of Poland, 329.
Sigismund, King, converted to Catholicism, 55.
Simeon the Stylites, 48.
Simon, acclaimed High Priest, 4.
Sinai, Mount, 275.
Singer, Simeon, 448.
Sipyaghin, 368.
Sisebut, King, treatment of Jews, 58.
Sisenand, Jews under rule of, 58–9.
Sixtus V., enlightened policy of, 205–6.
Skene, of Rubislaw, 312.
Skuptchina, election of Jew to, 384.
Smela, anti-Semitic riots at, 371.
Socialism in Russia, 358.
Social Democrats, denounce anti-Semitic agitation, 422;
as champions of Jews, 429.
Socrates, 290.
Solomon, of Egypt, 52, 71.
Songs of Zion (Jehuda Halevi), 72.
Sosnowice, anti-Jewish disturbance at, 372.
South Africa, dread of alien competitor in, 452, 478.
Spain, Jews in, 56–7, 59, 60, 69, 70, 74, 75, 84, 103, 140, 166;
higher type of, 142;
causes of anti-Judaism, 143;
slaughter of, 145–6, 149, 157, 158–9;
restrictive measures against, 150–1, 153;
regarded as outlaws, 153;
Jews love for, 162, 200, 317, 324, 326, 343, 441.
Spanish Jews, 173, 382;
persecution of, 404.
Spectator, the, 282.
Spektor, 355.
Spinoza, Baruch, 251–4, 298, 326, 440, 441.
St. Agobard, Bishop of Lyons, 79–80, 81.
St. Louis, see Louis IX.
Steinthal, 328, 440.
Stöcker, Adolph, 418, 419, 422;
expelled from Court, 425.
Strabo, favourable mention of Jews, 31.
Suetonius, 21 n.
Swedenborg, 320.
Switzerland, Jewish persecution in, 101, 304;
political equality of Jews in, 305–6.
Synagogue, 280, 298, 355;
intermarriage tolerated but not sanctioned by, 303;
in Seville, 311;
of Middle Ages, 396;
devotion to, 480;
struggle between State and, 505.
Syria, 60.
Tabernacles, Feast of, 212.

Table-Talk (Martin Luther), 216–7, 220.
Tacitus, 31, 32, 35.
Talleyrand, 297.
Talmud, The, 5, 53, 55, 63, 64, 72, 75;
general confiscation of, 97;
burning of, 97–8, 116, 137, 142, 145, 153, 190, 202, 205, 206,
242, 354, 497, 508.
Talmudical School of Walosin (“Tree of Life College”), 352.
Talmudism, 380, 425.
Tarik, 60.
Tartars, appeal to Sultan of Turkey, 336.
Taurien, Jewish workman forbidden to reside in, 346.
Taylor, Jeremy, 281.
Temple (at Jerusalem), restoration of, 4, 19, 21, 22;
destruction of, 26–7, 29, 297;
Strabo’s reverence for, 31;
Greek fables, 32–33, 35, 37;
rebuilding begun under Julian, 46, 49, 190, 211, 378, 487.
Test Acts, Repeal of, 322.
Testament, New, 275, 277.
Testament, The Old, Septuagint translation of, 2, 96, 106, 116, 275,
277.
Theodoric, conquest of Italy by, 53;
enlightened administration, 53–4.
Theodosius I., 52.
Theodosius the Great, 46, 48.
Theodosius the Younger, 47, 48.
Thirty Years’ War, 234, 235, 248, 412.
Thucydides, 14.
Tiberias, 38, 48, 484, 507.
Tiberius, persecution of Jews by, 21–22.
Titus, triumphal arch of, 27, 34, 35, 49, 57.
Toledo, Council of, 57, 60.
Torah, the, 2, 3, 64.
Torquemada, Thomas de, 155–6, 159, 161–3, 165.
Tortosa, religious controversy at, 152–3.
Toulouse, 68;
Count of, 68, 69.
Tractatus, the (Spinoza), 254.
Trajan, Emperor, 35.
Traube, 328.
Trent, 198;
rocks of, 199.
Trevelyan, Charles, 464.
Tsukermann’s Synagogue, 372.
Tudela, “Jewish barrier” of, 143, 198.
Turkey, Jews in, 173–4, 176, 196–7, 384, 491–2;
Christians in, 384;
and the Treaty of Berlin, 402;
policy of a regenerated, 438.
Ukraine, 238–9, 240, 241.
United Russian Revolutionists, 370.
Universities Tests Act, 324.
Urbino, Duke of, 204.
Usury and the Jews, 105–14, 116, 119, 130, 134–5;
typical case of, 128–9;
Bill for abatement of, 273.
Valens, Arian, Emperor, 46.

Vannes, Council of, 55.
Venetian Republic, Jews’ position in, 198–200, 201–2.
Venice, 329.
Victorian era, ideals of, 456.
Vienna, Jews banished from, 242–3;
in, 292, 309, 400;
Act signed in, 305;
anti-Semitic majority in Municipal Council, 428.
Vilna, 351, 376.
Virchow, 423.
Voltaire, 286, 287, 291, 293.
Voltaire-Hirsch lawsuit, 288–9.
Wagstaff, Vice-Consul, 342.

Wallachia, Jews of, 382.
War of Liberation, 305, 307.
Warsaw, Jews of, 354, 376.
Welldon, Bishop, 468.
Wellington, Duke of, 438.
Westphalia, Treaty of, 233–234.
Whalley, Major, 278.
Whitehall, conference at, 278.
Who is to blame? (Pronin), 359.
Wickliffe, 245.
William Rufus, toleration for Judaism, 116–7.
William I. (Emperor), 335.
William and Mary, 282.
Williams, Roger, 278.
Wilna, Elijah, 352.
Witte, M. de, 370.
Zangwill, Israel, 41, 42, 465, 466, 506, 511, 515, 516, 517.
Zebi, Sabbataï, 174–6, 242, 281, 326, 484.
Zion, desolation of, 26;
yearning towards, 94, 164, 488;
mourning over, 485, 487;
effect of destruction of, 485.
Zionism, 482–518;
opposition towards, 493, 495;
and Abdul Hamid, 501;
diversity among the delegates, 503;
progress of, 506.
Zionist Association, 490;
annual congresses, 491;
Zionist Colonial Bank (London), 506.
Zionist League in London, 515.
Zionist programme, 490, 491, 492;
newspaper (Die Welt), 490.
Znamya, an anti-Semitic organ, 358.
Zola, 433, 434, 435.
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Case Illinois v. Wardlow 144

Case City of Indianapolis v. Edmond 173

Case Illinois v. Lidster 176

5 Seizure of Persons: Arrest 184

Case Graham v. Connor 200

Case Kuha v. City of Minnetonka 204

Case Estate of Ronald Armstrong v. Village of Pinehurst 208

6 Searches for Evidence 222

Case Young v. City of Radcliff 237

Case Arizona v. Gant 244

Case Knowles v. Iowa 249

Case Whren v. U.S. 251

Case Illinois v. Rodriguez 270

7 “Special Needs” Searches 282

The Constitution and Self-Incrimination 325

9 Identification Procedures 366

Case Perry v. New Hampshire 378

Social Science and Mistaken Eyewitness Identification 381

Case State v. Clopten 393

Forensic Science and Identification Evidence 396

10 Remedies for Constitutional Violations I: The Exclusionary Rule 412

The Exclusionary Rule after Herring v. U.S. (2009) 432

11 Constitutional Violations II: Other Remedies Against Offcial

“State-Created Danger” after DeShaney (1989) 454

Case Pinder v. Johnson 461

Suing Judges and Prosecutors 465

12 Court Proceedings I: Before Trial 474

The First Appearance 482

The Right to Counsel 492

Testing the Government’s Case 504

Case Renico v. Lett 511

13 Court Proceedings II: Trial and Conviction 522

14 After Conviction: Sentencing, Appeals, and Habeas Corpus 556

15 Criminal Procedure in Times of Crisis 598

APPENDIX Selected Amendments of the Constitution of the United States 669

Text and Cases

Key Changes to the Tenth Edition

Criminal Procedure in Times Of Crisis

New Real-World Emphasis

Online Instructor’s Resource Manual

Online Test Bank

Cengage Learning Testing Powered by Cognero

Quemadero, The, 160, 247.

Raaben, General von, 358.

Tabernacles, Feast of, 212.

Valens, Arian, Emperor, 46.

Wagstaff, Vice-Consul, 342.

The Jewish Historical Society

SONGS OF EXILE BY HEBREW POETS. Translated by Nina

JEWISH HISTORY. An Essay in the Philosophy of History. By

MAIMONIDES. By David Yellin and Israel Abrahams.

RASHI. By Maurice Liber. Translated from the French by

MENASSEH BEN ISRAEL’S MISSION TO OLIVER

THE ETHICS OF JUDAISM. By M. Lazarus, Ph.D.

THE JEWISH HISTORICAL SOCIETY OF ENGLAND

LIFE OF WILLIAM EWART GLADSTONE. By John Morley.

LORD RANDOLPH CHURCHILL. By The Right Honourable

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